EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Barry O'Connor UD688/2011
Against
- McInerney Holdings PLC
- McInerney Holdings PLC
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr P. Pierce
Mr A. Butler
heard this claim at Dublin on 18th September 2012, 12th December 2012, 6th June 2013 and 18th December 2013.
Representation:
Claimant:
Ms Aisling McCarthy, Noel Smyth & Partners, Solicitors,
22 Fitzwilliam Square, Dublin 2
Respondent:
Flynn O'Driscoll, Solicitors, 1 Grants Row, Lower Mount
Street, Dublin 2
The determination of the Tribunal was as follows:-
The Claimant in this matter seeks relief pursuant to the Unfair Dismissals Acts 1977 to 2007. The hearings took place over four days. There were various issues raised in the case, and submissions were made by both parties with regards to the correct identity of the Respondent Company and the identity of the correct employer. The Tribunal determined in the initial hearing that the Claimant was employed by the named Respondent as set out in the TIA form.
Whereas it was not specifically set out in the T1A of the Claimant that the claim was one of constructive dismissal, the evidence that emerged was that the claim was for constructive dismissal and the final submissions on behalf of the Claimant supported and confirmed such a claim. The dismissal itself was in dispute and, as well as claiming that he was not an employee, the Respondent claimed in the T2 that the Claimant “agreed to resign from his position.”
The statutory definition of Constructive Dismissal is clear from Section 1 of the 1977 Act and at first instance, this definition includes the tests required to be considered by the Tribunal in any assessment of a claim.
However, prior to the Tribunal’s addressing of the reasonableness or otherwise of the decision to resign/dismiss and any consequent issues stemming from such a determination, including any issues regarding the procedural fairness (or otherwise) in any dismissal, the Tribunal must be satisfied that it has the required jurisdiction to deal with the claim.
Section 8 (2) of the Unfair Dismissals Act (as amended) relates to time periods to make an application: A claim for redress shall be initiated by giving notice in writing
(a) within 6 months beginning on the date of the relevant dismissal or
(b) if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable.
This amendment changed the rigidity of the old Section 8(2) which gave a tribunal no jurisdiction to alter either by abridgment or extension, any provision in the Act fixing the time period for making an application. An extension of time is now allowed for the lodgement of a claim in a case where there are “exceptional circumstances” which prevented the lodgement of the appeal within time.
In the facts of this case, the TIA states the Employment ended on the 20th October 2010. However in both evidence and submissions, the Claimant relies on the date of the 16th April 2010 as the date of the ending of the employment. It is noted that the Claimant under cross examination stated that the date he had ceased to be employed was the 1st April 2010 and the date that he had no longer any executive responsibility was the 16th April 2010. This came after the meetings of the Board of Directors on the 1st, 6th and 7th April 2010. The Tribunal heard that the Claimant had ceased as Managing Director of the Company after a Board of Directors decision taken on the 1st April 2010 and the Claimant stepped aside from his executive role/ responsibilities on the 7th April 2010. The dates outlined from April 2010 were only offered in oral evidence before the Tribunal and not on the actual claim papers itself.
The Tribunal heard evidence that the claimant was under pressure and felt harassed regarding the meetings on these dates. However, for the initial assessment as to the date of the cessation of the employment, the Tribunal is using the later date of the 16th April 2010.
The Application for redress was received by Tribunal on the 25th February 2011 (it is noted that the application was returned due to the lack of date when the “employment ended” and subsequently amended and returned on the 14th March 2011). This date is outside the 6 month time period allowed by Statute from 16th April 2010. However, this time period can be extended to 12 months if there are “exceptional circumstances”.
It was submitted by the Claimant that the reason that he did not bring his claim within the 6 month statutory period was that he had been unaware of the 6 month statutory time period, that he had been in continuous negotiations with the Respondent Company, and had been attempting to negotiate with the Respondent to avoid the necessity in bringing the action particularly with the media interest in the case and attempting to keep the matter out of the Courts. It is noted that the Claimant appeared to have been paid up to August 2010 during these on-going negotiations and the Tribunal is unclear as to the reason for this payment or what this payment referred to since it is the Claimant’s own case that the employment ended on the 16th April 2010.
In order for the Tribunal to extend the 6 month time period, the Tribunal must be satisfied that there are “exceptional circumstances” and that these circumstances prevented the Claimant from making an Application to the Tribunal within the statutory time period. The Tribunal, in this instance, is not so satisfied.
The Tribunal notes that the Claimant had been the Managing Director of a substantial company and had been employed with the Company since March 1988. The Tribunal also notes that in correspondence submitted that the Minutes of a Directors meeting dated the 6th April 2010, the Claimant asked for time to consult with his lawyers and the meeting was adjourned to the following day. These minutes also noted that the Claimant had already consulted with his lawyers prior to the 6th April 2010.
It is further noted that there was no argument made that the Claimant was under any disability, illness, lack of knowledge of potential legal redress, or was unaware of certain facts which opened the possibility of claiming redress until a time after the statutory time period, or a technical application that there was a failure of his legal advisors to make a claim within the statutory timeframe. In this case, the submission was that the Claimant was attempting to negotiate with the Respondent and prevent recourse to the Courts/ Tribunal and should not be penalised as this course of action to attempt to negotiate was favoured.
In the view of the Tribunal, taking into account all the background to the matter and the position held by the Claimant prior to the dismissal, this cannot be deemed an “exceptional circumstance”. It is noted that an “exceptional circumstance” need not be either a rare or unprecedented situation, but it cannot be a fact that is commonly, regularly and routinely encountered. The Tribunal has previously stated that ‘exceptional circumstances’ were strong words and meant something out of the ordinary and at the very least must be “unusual, probably quiet unusual but not necessarily highly unusual.” It is not unusual for parties to enter into negotiations after the termination of the employment relationship and such negotiations do not prevent or preclude the parallel making of a claim for redress to the Employment Appeals Tribunal or the other avenues available.
Therefore, after hearing all the evidence and submissions, the Tribunal declines jurisdiction under Section 8(2) of the Unfair Dismissal Act as amended to determine this claim.
It is unfortunate that the objection on grounds of Jurisdiction was not raised at the preliminary stages of the hearing and thus save much time and expense. The original submission referred to the ending of the employment on the 20th October 2010 and therefore the question of a submission on the matter being outside the statutory time periods did not arise at the early hearings. The issue only arose at later hearings as oral evidence was given that the employment ceased in April 2010 (a matter accepted by both sides). It is also noted that the Respondent did not have legal representation on the first two days of hearings and the issues raised were in respect of the identity of the Respondent/ employer and also a concern that there was a lack of documentation. However, it would always be a matter that a Tribunal would have to be satisfied that it has the relevant jurisdiction before assessing any claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)